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Bar Counsel Notes: Internet Research of Jurors
May an Attorney who represents a client in a matter that is set to be tried to a jury review any potential juror's presence on the Internet leading up to and during trial?
This question is very thoroughly addressed and answered in recently issued ABA Formal Opinion 466, Lawyer Reviewing Jurors' Internet Presence (April 24, 2014). In sum, that opinion concludes that an attorney may passively view a juror's public presence on the Internet, but may not engage in any active communicative conduct with a juror on the Internet, e.g. send an access request to a juror. Such an access request serves as an active review of the juror's electronic social media (ESM) by an attorney, and such an ex parte communication would violate M. R. Prof. Conduct 3.5(b). In addition, Formal Opinion 466 discusses two "recommendations" for attorneys who decide to review juror social media. First, those attorneys must remain aware of the automatic subscriber-notification features of ESM. By accepting the terms of use, the subscriber-notification feature is not secret. Thus, an attorney who uses an ESM network should be current with computer technology and review the terms and conditions, including privacy features (that may be repeatedly amended) before using such a network. Second, attorneys who chose to review jurors' ESM must ensure that review is properly purposeful and not done to at all "embarrass, delay, or burden a third person?" See M. R. Prof. Conduct 4.4(a).
*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.
